ALTERNATIVE MECHANISMS OF ACCESS TO JUSTICE AND THE ROLE OF COMMUNITY ADVICE OFFICES

Presented at the South African Human Rights Commission Colloquium on the Launch of the Access to Justice Campaign, University of the Free State

By

NOMBONISO NANGU

Director

National Alliance for the Development of Community Advice Offices (Nadcao)

10 June 2015

1. INTRODUCTION

Firstly, I would like to thank the South African Human Rights Commission for inviting me to speak on “Alternative Mechanisms for Access to Justice and the Role of Community Advice Offices”.

The organisation that I represent here today, the National Alliance for the Development of Community Advice Offices (Nadcao), was established in 2005 and works with a network of 312 community advice offices (CAOs) in South Africa, organised under the umbrella of the Association of Community Advice Offices of South Africa (ACAOSA).

Nadcao is also a member of the Network Guidance Committee (NGC) of Namati, an international organisation that is leading the field in supporting legal empowerment initiatives across the globe.

2. ACCESS TO JUSTICE IN SOUTH AFRICA

Access to justice has been explained and defined in various ways. Traditionally the term refers to opening up the formal systems and structures of the law to disadvantaged groups in society.

The fear of the daunting administrative requirements, inaccessibility which can be attributed to either cost and/or ignorance, on the existence of legal advice, information, aid, as well as government services further results in many citizens, especially those residing in rural areas, being unable to access basic human rights.

There are various pieces of legislation in South Africa that seek to advance the Constitution and the post-1994 democratic ideals. Whilst the Bill of Rights and other instruments for the protection of human rights mark an important milestone in the defeat of apartheid as institutionalised injustice, there is another reality that has emerged, that is characterized by increasing levels of inequality, a widening income gap and high levels of corruption. Such a reality has negative consequences on social cohesion and tears away at the moral fabric of South African society. The State, faced with this ominous task, is sure to fail in the delivery on the hopes and aspirations of all those who desire and fight for a just and humane society that guarantees the security of the most vulnerable against injustice; this is where the role played by community advice offices comes into sharp focus.

According to Legal Aid South Africa, in its publication in 2010/11, 2,728,305 civil matters (including new cases, trials, motions and judgments) were processed through the lower courts. Though it not clear which proportion of these cases required legal aid assistance, it is however predicted that demand for civil legal aid is set to increase and therefore the gap between supply and demand will continue to increase.

3. ALTERNATIVE MEANS TO ADVANCE ACCESS TO JUSTICE

According to the Global Alliance against Traffic in Women, this means removing not only legal and financial barriers, but also social barriers such as language, lack of knowledge, and intimidation by the law and legal institutions.

Conventional methods of access to justice whereby people are expected to approach the courts for redress; have proven ineffective in affording justice to the marginalized and poor in South Africa. This is due in some part to the general lack of awareness of legal rights and remedies, the language of the law is often difficult and bogged down with jargon and proves unintelligible even to the literate, more so to the under-educated rural poor.

Litigious processes are often delayed due to the mechanics of the legal process; this does little to assist with the financial constraints often faced by disadvantaged individuals. In a country like South Africa with a high unemployment rate of between 24% and 46%, with 29% of the labour force defined as semi-skilled and low-skilled; the cost-benefit of taking recourse to the courts is negligible.

Courts are often geographically inaccessible to the poor and bureaucratic systems within the courts remain unfriendly. There is often a general lack of faith or is it confidence, in the formal judicial system and at times a fear of courts is borne out of the apartheid system where people were often expected to never return once taken into court.

The narrow focus in the construction of access to justice has led to the exclusion of other means of resolving disputes or addressing social problems. Alternative Dispute Resolution (ADR) is often overshadowed and overlooked as a useful tool for access to justice. ADR can be defined as an early neutral evaluation, negotiation, conciliation, mediation and arbitration.

ADR often saves money and speeds settlements. In ADR processes such as mediation, parties play an important role in resolving their own disputes. This often results in creative solutions, longer-lasting outcomes, greater satisfaction and improved relationships.

4. THE ROLE OF COMMUNITY ADVICE OFFICES IN THE WIDER JUSTICE NETWORK

Community advice offices have, since the 1930s, occupied the position of primary centres of access to justice for marginalized communities; they are the first port of call for people who struggle to navigate a complex formal justice system. During South Africa’s struggle against apartheid, communities often relied on grassroots community based advice centres to fight injustice and address other social challenges they faced. Advice offices were at one level a critical part of the struggle for freedom and also a refuge for victims who needed support against an unjust system – seemingly too powerful for individual community members to take on.

Poverty, unemployment and inequality (often referred to as the triple challenges) remain the biggest threats to South Africa’s democracy. Improved access to justice is essential for poverty eradication and human development. This requires, amongst others, making the courts and the judiciary accessible to poor and vulnerable communities.

CAOs play a critical role in access to, and navigation of, the justice system. They are also key role players in the drive to establish a system of thinking that acknowledges and champions alternative systems and methods of redress and dispute resolution. They continue today to advance the implementation of ADR through negotiation and especially mediation. Advice offices not only allow parties to meet in order to settle a dispute, but advocate for a form of dispute settlement that allows the parties themselves to control the process and own the solution.

Negotiation and especially mediation is a key component of the legal advice services provided by advice offices. It is through mediation that 312 advice offices in South Africa deal with a range of issues and cases such as domestic violence, labour, farm worker rights, victim empowerment and other socio-economic issues faced by disadvantaged communities.

Community advice offices operate at the most fractured part of the justice delivery framework, with their efforts ranging from administrative justice (supporting courts access), restorative justice (remedial and redress options), social justice (access to rights) and economic justice (access to the economy).

5. WHY NADCAO BELIEVES AND PARTICIPATES IN EFFORTS FOR THE INCLUSION OF ACCESS TO JUSTICE IN POST 2015 SUSTAINABLE DEVELOPMENT GOALS?

According to the UN Commission on Legal Empowerment of the Poor, an estimated four billion people around the world live outside the protection of the law. Without access to effective justice institutions, these people can be easily exploited by employers, driven from their land, and intimidated by violence.

In order to help the disadvantaged and women to become equal partners in decision-making and development, justice needs to be recognized as a central tenet, yet “no country is free from discrimination in the administration of justice (UNDP).

For many communities across the world, areas of employment, education, social services, language use, freedom of movement and other basic rights remain the areas of institutional and societal discrimination. The provision of access to information in indigenous languages and the availability of well-trained interpreters remains an issue.

With that being said, we must not neglect to acknowledge the progress of legal protection worldwide which includes the existence of 139 constitutions worldwide that guarantee gender equality, the 117 countries that promote equal pay laws and 115 countries that guarantee equal rights to own property for all minorities.

The inclusion of access to justice in the Post-2015 SDGs will enhance opportunities for community advice offices, who have expert knowledge and practice in mediation and other ADR mechanisms to advocate for inclusion by law as practitioners in the wider legal framework of South Africa, ensuring recognition and regulation of the sector. This in turn will translate to better access to justice for disadvantaged communities and will have a positive impact on the reduction of poverty and inequality in our communities.

In advancing these views, the National Alliance for the Development of Advice Offices (Nadcao) successfully presented a case for the inclusion of access to justice as part of the Post-2015 Agenda at a UN Side event, hosted by the Permanent Mission of Nepal, in New York in May 2015.

The participation of Nadcao in this process started around September 2013 during the Global Dialogue on Rule of Law and Post-2015 Agenda and by September 2014 Nadcao had managed to be part of a team of civil society organisations, with Namati and Open Society Foundation, that presented to a contingent of about 10 Ambassadors to the United Nations, on the role that community advice offices can play in advancing access to justice.

The results of Nadcao’s contributions and return on investment in the SDG process, is to be seen in the emergence of the following goal:

Goal 16:

“Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.

The Goals has a number of targets, but Nadcao has been encouraged by the following target and one of its immediate indicators:

Target 16.3 promote the rule of law at the national and international levels, and ensure equal access to justice for all

Proposed Indicator 1: Percentage of people who have experienced a dispute, reporting access to an adequate dispute resolution mechanism

Statement by a group of UN independent human rights experts to mark the International Day for the Elimination of Racial Discrimination, Monday 21 March 2011 cited in UNDP. Strengthening Judicial Integrity through Enhanced Access to Justice, http://www.undp.org/content/dam/rbec/docs/Access%20to%20justice.pdf